VIRGINIA JOURNAL
dence they could introduce about their religious job performance, and perhaps subject to limits on reinstatement as a remedy. It is no surprise that Laycock vigorously disagrees. Another principle prominent in Laycock’s work is that religious speech by citizens speaking in their private capacity is constitutionally protected, while the same religious speech by government employees speaking in their governmental capacity, or by private citizens with preferential access to a government forum, is constitutionally prohibited or very tightly restricted. In a 1986 article, he fully elaborated the case for guaranteeing religious speakers equal access to the public forum, including in sensitive contexts such as public schools. He has repeatedly represented evangelical Christians, or supported them in amicus briefs, in their continuing efforts to enforce such rights. But he also successfully represented parents and students who objected to prayer at Texas high-school football games in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), and in articles and amicus briefs he has opposed government-sponsored crosses, crèches, and Ten Commandments monuments. Laycock sees no tension between protecting private religious speech and prohibiting similar speech by government officials or those with preferred access to a governmental forum. “The government abandons neutrality when it censors religious speech," he says, “and it abandons neutrality when it endorses the majority’s religion." In his view, equal liberty for all is a powerful principle. Laycock is a scholar and an advocate, but he is not a hired gun. In fact, he jokes that he is rarely hired at all. Most of his religious liberty litigation is pro bono. More fundamentally, he will not take a position in a brief that he would not take in a law review article. His interests are eclectic, and occasionally more theoretical than practical, but in general, he wants his scholarship to deal with practical problems and to potentially have practical consequences. And to accomplish that, he has to address multiple audiences. He has no illusion that judges or legislators are reading his many law review articles. “If you hope to influence judges, you have to write briefs,” he says matter-of-factly. 60
Laycock’s lasting contribution to our understanding and the development of the law of religious liberty will be reflected in a four-volume series published by Eerdmans Publishing and the Emory University Center for the Study of Law and Religion. The volumes collect his writings on religious liberty. Volume 1: Overviews and History, and Volume 2: The Free Exercise Clause, are already out. Volume 3, Religious Liberty Legislation, and Volume 4, The Free Speech and Establishment Clauses, are in preparation. The quote that opened this article is from Professor Thomas Berg’s review of Volume 1. The review was titled “Laycock’s Legacy," but Laycock says he’s not ready to think about legacies yet; he’s still working and writing. Laycock’s influential work in religious liberty is only part of his story. He is also a dominant figure in the field of remedies, and indeed, his approach to the field has helped transform it. Laycock’s most important work in remedies is The Death of the Irreparable Injury Rule (Oxford University Press, 1991). Based on an exhaustive analysis of reported cases, the book shows that the traditional doctrinal “rule”—that no equitable remedy will issue unless legal remedies are inadequate, or in the alternative formulation, unless necessary to prevent irreparable injury—does not affect decisions at the stage of permanent injunctions or final decrees for specific performance. A version of the rule is important at the stage of preliminary relief, but the content of the rule with respect to preliminary injunctions is substantially different from the content of the rule with respect to final judgments. Based on his analysis of the cases, Laycock identified a series of more functional rules, mostly having to do with the relative costs and benefits of alternative remedies, that explain decisions at final judgment. Readers who follow the Supreme Court may know that the Court has talked a lot about irreparable injury and adequate remedy at law lately, and that it has failed to distinguish preliminary from permanent injunctions. Laycock sees no repudiation of his thesis, but merely a continuation of the judicial behavior he described in his book. In each of the recent cases in the Supreme Court, there were clear functional reasons to refuse the injunction. And one of the central 61
DOUGLAS LAYCOCK